Citation NR: 9627160
Decision Date: 09/24/96 Archive Date: 10/03/96
DOCKET NO. 95-06 811 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Oakland,
California
THE ISSUE
Entitlement to service connection for residuals of a right
leg injury.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J.M. Daley, Associate Counsel
INTRODUCTION
The veteran had active service from August 1952 to August
1954.
This matter is before the Board of Veterans’ Appeals (Board)
on appeal of a February 1993 rating decision, which denied
service connection for residuals of a right leg injury.
REMAND
The veteran contends that he sprained his right knee during
active military service in Japan. The veteran argues that he
has continued to have right leg problems since service and
that his current arthritis and right leg pain are related to
the in-service injury.
The Board notes that the veteran's service medical records
are presumed to have been destroyed in a fire at the National
Personnel Records Center (NPRC) in St. Louis, Missouri, in
1973. In May 1992, the NPRC notified the RO that they had no
medical records on file for the veteran, and that the
veteran’s separation and discharge physical examinations
could not be reconstructed. The veteran subsequently
completed VA Form 13055. In October 1993, the NPRC notified
the RO that they were unable to conduct any additional search
for the veteran’s medical records from the information
provided.
The VA has a duty to assist the veteran in completing his
application as well as to assist in the development of facts
pertinent to his claim. 38 U.S.C.A. §§ 5103, 5107(a) (West
1991). This duty is particularly great when the veteran's
service medical records are unavailable or have been
destroyed. Moore (Howard) v. Derwinski, 1 Vet.App. 401
(1991); see also O'Hare v. Derwinski, 1 Vet.App. 365 (1991).
This duty includes assisting the veteran in securing clinical
and treatment records when such records exist, but are not on
file. Murphy v. Derwinski, 1 Vet.App. 78 (1990). In the
instant case, the record contains authorizations, signed by
the veteran in December 1993, for the release of medical
treatment records from the Martinez VA medical center and the
Sacramento Outpatient Clinic. It is unclear whether the RO
requested these records. In his March 1996 Travel Board
hearing, the veteran again referred to treatment at
Sacramento and Martinez VA facilities, including x-rays taken
at Sacramento that demonstrate the veteran’s arthritis. The
claims file does not contain any records from these
facilities.
Therefore, to ensure full compliance with due process
requirements, the case is REMANDED to the RO for the
following development:
1. The veteran should be contacted to
provide the names and addresses of all
medical sources where he has been treated
or examined for his right leg since
service discharge. Any records not
currently in the claims file should be
secured and associated with the claims
file. The veteran should be asked to
sign the appropriate authorization forms
releasing his medical records to the VA.
In addition, the RO should obtain all
records of pertinent VA medical treatment
and associate those with the claims
folder, specifically, records from San
Francisco and Martinez, California, VA
medical facilities.
2. After the above records have been
obtained, the RO should review the claims
folder and determine whether the
veteran's claim is well grounded. If it
is not well grounded, the veteran should
be advised of the type of evidence needed
to establish a well-grounded claim and
should be assisted in obtaining it. If
the RO finds the veteran's claim to be
well grounded, the RO should, if
necessary, schedule the veteran for a VA
orthopedic examination to determine the
current nature, severity and etiology of
any residuals of the veteran’s right leg
injury.
3. After the above determination, and
the completion of any additional
necessary development, the RO should
again review the record and readjudicate
the veteran’s claim for service
connection for residuals of a right leg
injury. If the benefit sought on appeal
remains denied, the veteran and his
representative should be furnished a
supplemental statement of the case and
given the opportunity to respond thereto.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The appellant need take no action
unless otherwise notified.
THOMAS J. DANNAHER
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1995).
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